Originally published at: https://freekeene.com/2022/01/29/us-appeals-court-rules-dea-allowed-access-to-nh-opioid-database-without-a-warrant/
On January 27, 2022, the US Court of Appeals for the 1st Circuit, Chief Judge Jeffrey Howard, ruled in “US Dep’t of Justice v. Jonas, No. 19-1243,” that the DEA (Drug Enforcement Administration) can “legally” access New Hampshire’s prescription drug database via an administrative subpoena, not a warrant. This is despite New Hampshire and United States laws to the contrary.
While 48 states have submitted to maintaining a networked prescription database (Prescription Drug Monitoring Program / PDMP), most people would argue that their personal medical and prescription records are protected by the 4th amendment (“no warrants shall issue, but upon probable cause.”) Personal healthcare and medical information is generally protected under doctor-patient confidentiality laws and is regarded as almost sacrosanct in the healthcare world (think HIPAA.) In this case, confidentiality was further supported by the 4th amendment to the US Constitution.
Overwhelming Support From the Liberty Community
Michelle Ricco Jonas, manager of the New Hampshire PDMP in 2018, refused the DEA’s request to fork over 2.5 years’ worth of prescription data of a “person of interest.” After being subpoenaed she argued that the records belong to the state, not an individual person. Since March 12, 2019, when the notice of appeal was docketed, Michelle Jonas and New Hampshire state received an outpouring of support from the ACLU of California, Maine, Massachusetts, New Hampshire, New York, Puerto Rico, and Rhode Island – in other words, all the districts represented by the 1st Circuit Court.
Over the past two grueling years of appeal, the ACLU supported Jonas, and questioned whether issuing a subpoena to a state employee is within the bounds of the district court. They argued that medical records, for all intents and purposes, are considered private information. While the DEA has the ability to subpoena an individual, the ACLU asked if that gave them the right to subpoena a representative, or employee, of the state. They also argued that the 4th Amendment requires law enforcement “to obtain a warrant based on probable cause only to secure records over which there is a reasonable expectation of privacy.” The ACLU argued that medical records warrant an expectation of privacy.
The prescription records at issue in this case reveal intimate, private, and potentially stigmatizing details about patients’ health, including details of those patients’ underlying medical conditions. For that reason, as with other medical records, people have a reasonable expectation of privacy in them.” – Summary of Argument, US Dep’t of Justice v. Jonas, No. 19-1243
So What Was the Loophole?
In a nutshell, the “third-party doctrine” was the loophole the DEA used to secure a “victory” in this appeal. Basically, if you voluntarily share information with a third party (say a pharmacist at CVS who fills your prescription), you magically lose your right to the 4th amendment because you voluntarily shared your private information.
Now, I know what you’re thinking. You have to share that private information in order to receive your prescription medications through lawful means. If you wanna live, if you wanna beat that disease, you have to give your name, address, phone number, and all the information they need so you can just get your pills. Right? So what exactly is the alternative? The grey market? Street drugs? A life of crime?
The Feds Will Stop at Nothing to Support the Prison-Industrial Complex
It seems obvious that personal medical information is personal. We share that information with medical professionals with the expectation that their oaths of ethics and doctor-patient confidentiality will keep it that way. Everywhere we go we see “HIPAA” emblazoned there, telling us how seriously our personal medical information is treated, at the risk of sanctions, medical license removal, and prison time. Medical professionals have an entire course in this topic, and it’s included in their jurisprudence board exams.
There’s really no way to “logic” around this ruling; it’s pretty cut and dried. The DEA will stop at nothing to reach their quotas, to perpetuate the prison-industrial complex, and to erode our Constitutional rights. Unfortunately this is one of many similar rulings in the United States.
It’s up to us to continue fighting for freedom, liberty, and our Constitutional rights. It’s up to us to determine if this is acceptable or whether it’s about time we stand up against this onslaught and say, “I’m not gonna take this anymore!”
I want you to get up right now. Sit up. Go to your windows. Open them and stick your head out and yell – ‘I’m as mad as hell and I’m not gonna take this anymore!’ Things have got to change. But first, you’ve gotta get mad! You’ve got to say, I’M AS MAD AS HELL, AND I’M NOT GOING TO TAKE THIS ANYMORE! Then we’ll figure out what to do about the depression and the inflation and the oil crisis. But first, get up out of your chairs, open the window, stick your head out, and yell, and say it: I’M AS MAD AS HELL, AND I’M NOT GOING TO TAKE THIS ANYMORE! – “Network” movie, 1976
Side Note
As of January 27, 2022, the exact date upon which this appeal was concluded, the presiding 1st Circuit Judge Jeffrey Howard announced his early retirement at the age of 66. This was the last case he will hear, and thankfully, the last case he will rule on.
Sources
- 1st Circuit’s lone Replican-appointed judge to step down from active service
- New Hampshire fights DEA bid to access drug database without a warrant
- Medical prescription warrantless searches get new challenge
- United States Court of Appeals for the First Circuit (19-1243)
- Docket for Case #: 19-1243
- United States Court of Appeals for the First Circuit
- Chief Judge Jeffrey R. Howard
- What is the prison-industrial complex?
- Fourth amendment
- 19-1243 judgment summary
- Prescription Drug Monitoring Programs (PDMPs)
and thanks!